AIM

To create new powers to gather and share information for counter-terrorism; to make further provision about the detention and questioning of terrorist suspects and the prosecution and punishment of terrorist offences; to impose notification requirements on persons convicted of such offences; and to confer further powers to act against terrorist financing.

MAIN PROVISIONS

• Enables a constable to take fingerprints and DNA samples from individuals subject to control orders, and ensure full use can be made of them in terrorism investigations.• Enables post-charge questioning of terrorist suspects and the drawing of adverse inferences from a refusal to say something that is later relied on in court.• Allows for extended sentences for offenders convicted of offences with a "terrorist connection".• Enables the police to request monitoring information from convicted terrorists and prevent them from foreign travel.• Removes the general bar on the use of intercept material in certain specified proceedings. • Amends the definition of terrorism by inserting a reference to a racial cause.• Enables the Treasury to direct the financial sector to take action on suspected money laundering or terrorist financing transactions in countries outside of the European Economic Area; and enables people affected by such actions to apply to have the decision reversed.• Makes it a criminal offence to elicit or attempt to elicit information about a member of the armed forces, the intelligence services or a constable which is of a kind likely to be useful to a person committing or preparing an act of terrorism .• Enables constables to enter – by force if necessary – and search the premises of individuals subject to control orders who are reasonably suspected of having absconded or of failing to grant access. • Puts the secret service DNA database on a statutory footing and allows the cross-referencing of this database with the national police database.

Action on the bill was beset by the government's failure to achieve cross-party consensus on a range of proposals – dominated by the heated debate over pre-charge detention – and by the time it was published in January 2008, many of the purported provisions had been dropped, including allowing intercept evidence to be used in terrorism cases.

Although a report from a cross-party committee supported the use of intercept evidence in certain cases, the government expressed concern that it could jeopardise the work of the security services. Prime minister Gordon Brown said he still had to overcome "considerable objections" in the intelligence community, who suggested a ban on intercept evidence could damage the fight against terrorism.

Civil rights campaigners had hoped that the use of intercept evidence in terrorist cases would mitigate the need for extending the pre-charge detention period, and for the control orders regime.

The final act did, however, include certain provisions on intercept evidence: an amendment to the Regulation of Investigatory Powers Act 2000 (RIPA) enables the disclosure of intercepted communications in financial restrictions proceedings (ie in challenges to asset-freezing decisions); while another amendment allows disclosure of intercept material to a person appointed as counsel to an inquiry held under the Inquiries Act 2005, if the inquiry panel is satisfied that there are exceptional circumstances that make it essential.

The most controversial provision to remain on the bill when it was introduced was a proposal to amend the Terrorism Act 2000 to create a so-called "reserve power" for the home secretary to extend the maximum period of pre-charge detention in custody for individuals suspected of terrorism-related offences from 28 to 42 days. This followed the government's failed proposal for 90 days in 2005.

Home secretary Jacqui Smith justified the move, saying, "We are facing an unprecedented threat from terrorism" – an argument backed by Home Office security minister, Tony McNulty, who warned that the new laws were needed because Britain could face "two or three 9/11s" in a single day.

The government also had the support of certain senior police officers. Metropolitan police commissioner Sir Ian Blair had told the Commons home affairs select committee: "At some stage 28 days is not going to be sufficient, and the worst time to debate whether an extension is needed would be in the aftermath of an atrocity."

The Association of Chief Police Officers said it could envisage circumstances in which the 28-day limit might prove inadequate given the increasing complexity and size of the terrorist challenge, while commissioner Bob Quick told a committee of MPs considering the new legislation that 15 terrorist plots had been foiled since the London bombings in July 2005, with he and Blair using this as justification for their call to extend the pre-charge detention period.

In the end, the government won a majority by just nine votes, but was forced to defend itself against accusations that it had "bought" votes from the Democratic Unionist party and Labour rebels to prevent a revolt.

The following day, shadow home secretary Davis Davis resigned as an MP in protest over 42 days, forcing a byelection in his constituency of Haltemprice and Howden, which he went on to win on 11 July.

The bill's passage through the Lords was just as bumpy. On 5 August, the House of Lords constitution committee criticised the proposed involvement of parliament in the detention of terrorism suspects, stating that it was "institutionally ill-equipped" to do so.

On 13 October, 42 days was thrown out by the Lords, and in what was called "a face-saving gesture", the government published draft legislation containing the proposal – the counter-terrorism (temporary provisions) bill – which will be held in reserve and introduced in parliament "if necessary".

The government was also forced to drop provisions allowing so-called "secret inquests" – an amendment to the Coroners Act 1988 would have allowed the secretary of state to issue a certificate requiring a coroner's inquest to be held without a jury in, among other things, "the interests of national security". The proposal was recently reintroduced in the coroners and justice bill, published on January 14 2009.

CRITICISM

Liberty spearheaded the opposition from civil liberties and human rights campaigners with its high-profile Charge or Release campaign, and in the run-up to the bill's introduction revealed that Britain's existing 28-day limit is already far longer than that for any comparable democracy. Liberty director Shami Chakrabarti told the Guardian that this "new, damning evidence … makes embarrassing reading for all of us in the land that gave Magna Carta to the world".

The human rights organisation also took on the government's professed goal of creating consensus around the pre-charge detention limit, building a coalition against extended detention. In October 2008, 42 writers joined Liberty in opposing the plan. Dissent also came from across the political spectrum: Conservative David Davis said the proposal "risks creating a recruiting sergeant for terrorists", and Liberal Democrat Nick Clegg said "there is not a shred of evidence that it is necessary", while just one month before the bill was introduced, it was reported that only a third of Labour MPs backed extending pre-charge detention beyond 28 days.

Director of public prosecutions Sir Ken Macdonald also opposed the plans, telling the Guardian: "I think the basic point is whether you want to legislate on the basis of hypotheticals or whether you want to legislate on the basis of the evidence that we have acquired through practice." In April 2008, in giving evidence at committee stage, he also said that even if police could not complete their investigations within the present 28-day limit, they did not necessarily need to, because the threshold of evidence needed to bring charges in serious cases has been lowered. This, in certain circumstances, meant that people could be charged on the basis of "reasonable suspicion" that they may be guilty of a crime, rather than the full test of "a realistic prospect of conviction". This threshold standard, along with post-charge questioning, invalidated the need for extended detention.

Former attorney general Lord Goldsmith, meanwhile, said he would have resigned from office if parliament had approved a 42-day limit on his watch. He told the Guardian: "You shouldn't keep people in without trial longer than you need to. It's a basic civil liberty … I find it hard to see how once you've got to 28 days and haven't found enough evidence to charge them, that things are going to change fundamentally."

Amnesty International was concerned that the power included no effective safeguards against arbitrary detention; that it could lead to other abusive detention practices; and that it undermines the safeguards built into international human rights law to ensure that vital rights are only restricted in genuine public emergencies threatening the life of the nation. It was also argued that the provision would violate European human rights legislation.

In a letter to the Guardian in June 2008, Lord Rea, Sir Geoffrey Bindman and many others said that the bill "should be opposed in its entirety" – yet many of the proposals that they cited remain intact. For instance, they criticised how the bill widened "the net of innocent people who will be incriminated. It creates a new offence of seeking or communicating information about the armed forces which could be useful to terrorism, which we fear will become yet another convenient tool for use against the peace movement."

Amnesty International stated concerns about post-charge questioning, which was also retained in the final act. Amnesty said: "[T]hese proposals risk undermining the presumption of innocence, the right to silence and the privilege against self-incrimination. They also increase the risk of oppressive or coercive questioning."